TMI Blog2015 (8) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Appellant : Mr. R. Parthasarathy For the Respondent : Mr. A. P.Srinivas - R1 JUDGMENT (Judgment of the Court was delivered by R. Sudhakar, J.) The above Civil Miscellaneous Appeals are filed as against the order of the Tribunal ordering pre-deposit raising the following substantial questions of law: 1. Whether in the facts and circumstances of the case, the Hon'ble Appellate Tribunal was correct in ignoring the decisions of this Hon'ble Court being the jurisdictional High Court, but following the decision of the Bombay High Court which is passed without considering the decision of the Hon'ble Supreme Court in the case of Jawahar Mills Limited? 2. Whether the Tribunal was right in ordering pre-deposit without considering the pleas of financial hardship raised by the appellant in proper perspective? 3. Whether in the facts and circumstances of the case, the Tribunal was justified in directing the appellant to pre-deposit ₹ 8 crores, being the credit of duty paid on tower parts and shelters and on input services used for erection and installation of towers and shelters? 4. Whether in the facts and circumstances of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that the decision of the Hon'ble Madras High Court as stated by the learned Advocate is in the context of eligibility of CENVAT Credit on capital goods, namely, of various items used in civil construction, which is absolutely necessary for establishing manufacturing units of cement. We find that the eligibility of CENVAT credit on input, input services and materials depending upon each facts of the case. But the Hon'ble Bombay High Court directly on the issue before us held in favour of the Revenue on the first issue of denial of CENVAT Credit on tower and civil material. The learned Advocate on the second issue emphasized that the Tribunal in the case of Navaratna S.G. Highway Properties Pvt. Ltd. (supra) held that input service credit on Construction or Renting of Immovable Property would be eligible. In that case, the Tribunal followed the decision of the Hon'ble Andhra Pradesh High Court in the case of Commissioner Vs. Sai Storage Pvt. Ltd. reported in 2011 (23) S.T.R. 341 (A.P.). 6. Prima facie, we find that the first issue is no longer in favour of the applicant and the issue no.2 is an arguable matter. In view of the above discussion and considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be considered as telecom equipment or as part of any telecom equipment. It is basically a structural support to certain equipment and is not used in the premises of the provider of output service. He also submitted that the erection, commission and installation and constructions are not related to output services of telecom services provided by the assessee. Hence, the assessee had incorrectly availed the Cenvat Credit on inputs services used in relation to towers and shelters. On a total demand of 18.90 crores, the Tribunal had only ordered pre-deposit of ₹ 8.00 crores, which is less than 50% of the demand. He further submitted that the issue is squarely covered by the decision of the Bombay High Court in the case of Bharti Airtel Vs. Commissioner of Central Excise, Pune reported in 2014 (35) STR 865 (Bom.). Hence, he submitted that the order of the Tribunal may be confirmed. 10. Heard learned counsel appearing for the appellant/assessee and the learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court. 11. It is seen that the Tribunal in this case, agreed with the contention of the Revenue that the first issue relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... give a licence to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen s faith in the impartiality of public administration, interim relief can be given. 9. It has become an unfortunate trend to casually dispose of stay applications by referring to decisions in Siliguri Municipality v. Amalendu Das, (1984) 2 SCC 436 and CCE v. Dunlop India Ltd., (1985) 1 SCC 260 cases without analysing factual scenario involved in a particular case. 10. Section 35-F of the Act reads as follows: 35-F. Deposit, pending appeal, of duty demanded or penalty levied. Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of Central Excise Authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied: Provided that where in any particular case, the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le dealing with the application has to consider materials to be placed by the assessee relating to undue hardship and also to stipulate conditions as required to safeguard the interests of the Revenue. 14. For the foregoing reasons, we pass the following order: (i)On the questions of law raised, we are of the view that the Tribunal was not justified in ordering the pre-deposit in the manner stated in its order dated 20.11.2014; (ii)Consequently, the order of the Tribunal dated 20.11.2014 is modified to the effect that the appellant shall make a pre-deposit of ₹ 6,65,81,395/-, which is relatable to credit denied on capital goods; and (iii)It is made clear that the appellant shall make a predeposit of 50% of ₹ 6,65,81,395/- within a period of four weeks from the date of receipt of a copy of this order and the balance 50% shall be made within a period of four weeks thereafter and subject to such compliance, the pre-deposit of balance amount demanded shall remain waived and its collection shall stand stayed during the pendency of the appeal before the Tribunal. In the result, these appeals are ordered in the above terms. No costs. Consequently, connected Mis ..... 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